Osborne v. Osborne

• Citation: 14 A. 217,44 N.J.E. 257
• Parties: OSBORNE v. OSBORNE.
• Decision Date: 23 May 1888
• Court: United States State Supreme Court (New Jersey)

14 A. 217

44 N.J.E. 257

OSBORNE

v. OSBORNE.

Court of Errors and Appeals of New Jersey.

May 23, 1888.

Appeal from court of chancery; BIRD, Vice-Chancellor.

Bill for divorce by John A. Osborne against Catharine A. Osborne, and crossbill by the wife, who appeals from a decree rendered in favor of complainant. See 9 Atl. Rep. 698, and 10 Atl. Rep. 107.

Leon Abbett, for appellant. H. H. Wainwright, for respondent.

GARRISON, J. This cause was heard in the court of chancery upon bill and answer, and crossbill, answer, replication, and proofs. The original bill was filed by John A. Osborne, complainant, against his wife, Catharine A. Osborne, for divorce upon the grounds of her adultery. Her answer denies the charge of adultery, and sets up, by way of crossbill, desertion on the part of the complainant, and prays for a divorce from him upon that ground. The petition of appeal, and the answer thereto, put in question, not only the propriety of the decree against defendant for adultery, but also the refusal of the court to award a divorce to her upon the ground of the complainant's desertion. Two questions are thus represented for consideration upon the proofs. I have carefully examined the testimony for evidence of adultery, but have failed to discover any. Adultery is not shown, nor are the elements of lust, lewdness, depravity, or secrecy, the invariable concomitants of criminal conversation, to be found in the proofs. If we give to the testimony the construction most unfavorable to the defendant, a decree based upon adultery must rest upon one of two grounds: either that opportunity is tantamount to guilt, or that a decree may rest upon a crime half proven, even though the half it rests upon is the half that is not proven. Applying to the evidence in this cause the doctrine of the decided causes in this state upon this subject, the decree below cannot be sustained. Berckmans v. Berckmans, 17 N. J. Eq. 453; Larrison v. Larrison, 20 N. J. Eq. 100; Marsh v. Marsh, 28 N. J. Eq. 196; Franz v. Franz, 32 X. J. Eq. 483; Whitenack v. Whitenack, 36 N. J. Eq. 474; Belton v. Belton, 26 N. J. Eq. 449; Tate v. Tate, Id. 55; Palmer v. Palmer, 22 N. J. Eq. 88; Woodworth v. Woodworth, 21 N. J. Eq. 251; Mount v. Mount, 15 N. J. Eq. 162; Mayer v. Mayer, 21 N.J. Eq. 246; Culver v. Culver, 38 N. J. Eq. 163.

The crossbill proceeds upon the ground of the desertion by the complainant. From undisputed testimony, as well as from his own admission, it appears that Osborne left his wife and family while they were living in Forty-Ninth street, New York. After coming and going for a time, as his health or caprice suggested, he finally left them, and took up his abode in Manasquan, where he remained until the filing of his bill, in 1886, a period of nine years. Once, shortly after he thus absented himself, he returned to New York city, but went to the house of a relative, where for a short time he was ill. Hearing of his illness, his wife visited him, and as soon as he would consent she removed him to their house in Forty-Ninth street. In his own testimony, com...